Fourth Plenary Meeting of the ASP15

Overview by Kimberley Ogonda and Emma Bakkum, Research Associates PILPG-NL

Highlights:

• General Debate in fourth Plenary Session. This debate included a discussion about the withdrawals of States from the Rome Statute and the universality of the Rome Statute.

• Kenya noted that African states remain the bedrock of this Assembly. However, they consider they have been confronted with hostile and negative perception.

• The representative of Tanzania noted in her speech that “Recent widespread perception calls for a serious dialogue. The work of this ASP is to address the matters of serious concern with sincerity and without delay.”

During the 4th Plenary meeting fifteen member states, three observer states (US, Iran, and China), and twelve NGO’s concluded their statements. During the meeting the following highlights were made by the speakers:

The majority of states emphasized their concern with the announcement made by three African member states to withdraw from the Rome Statute and appealed to these states to reconsider their decision. All states also emphasized the importance of sovereignty and noted it was important to respect the wishes of those wanting to withdraw from the Rome Statue. To enable universality many member states noted the need for constructive dialogue between the ICC and members. For example, the representative of Tanzania noted in her speech that “recent widespread perception calls for a serious dialogue. The work of this ASP is to address the matters of serious concern with sincerity and without delay.” Ghana noted that this year’s ASP is held at a time of great turbulence. Withdrawal threatens the legitimacy of the ICC and what it has achieved. Ghana noted that this year’s ASP is held at a time of great turbulence. “Withdrawal threatens the legitimacy of the ICC and what it has achieved. This development is worrying because it represents a deepening of tensions between the Court and African states and because they are setbacks in achieving universality of the Rome Statute.”

El Salvador has recently ratified the Rome Statute and the Kampala Amendments on war crimes and the crime of aggression. This was welcomed by many member states who also urged other non-member states to take necessary steps to ratify the Rome Statue and the Kampala Amendments. Moreover, states expressed concern regarding the UNSC and veto power of states.

Kenya mainly expressed concern regarding the UN High Commissioner’s statement made the previous day, namely that member states wanting to leave the ICC, should leave. Kenya accused the UN High Commissioner of lacking the courage to name the countries outside the Rome Statute: “Do African states have to be the perennial scapegoat? We are shocked and saddened and dismayed by his unhinged and unfortunate statement.” Kenya also stressed it will not engage in superficial dialogue anymore. Kenya strengthened the fact that it remains a defender of human rights and that it will always act in good faith. Kenya views itself as a democratic construct and in good standing. Kenya’s engagement with the court and in this assembly, is and will remain undeaden by law, state practice, multilateralism and diplomatic etiquette.

Non-member state U.S. recalled its concerns regarding the crime of aggression amendments. “We continue to believe there remains a dangerous and substantial degree of uncertainty with respect to quite basic issues regarding the amendments, and we continue to believe that it is in the interest of both peace and justice to ensure that any decision to activate the Court’s jurisdiction be preceded by concrete steps to provide greater clarity on these matters.” Other states however, such as Trinidad and Tobago, urged for the activation of the court’s jurisdiction regarding the crimes of aggression.

Budgetary concerns were also raised by many states. Brazil claimed that budgetary realities in member states are ignored and are not in line in line with budgetary progresses. Further they claimed that the situation is not sustainable and reiterated the need to implement Article 142 and 115(b), to avoid that these costs will fall only on the members. Mexico and Guatemala called for better transparency regarding the budget. Ghana reiterated its call for a cost-benefit analysis to justify the sacrifices that have been made in term of resources and personnel.

States moreover spoke about the importance of protecting victims, having a Victim trust fund and ensuring access for justice for all. The U.S., Mexico and Tunisia made reference to the fact that crimes in Syria and Iraq are currently not being addressed. Complementarity was also emphasized by states. They emphasized their firm belief in the need to effective operationalization of complementarity as a clear instrument to assure the full realization of the objectives of the Rome Statute. Building domestic capacity of judges and prosecutors and other key officials in domestic to equip them adequately.

Ghana noted that the argument to maintain flexibility of Article 97 of the Rome Statute may have been valid in the past, but the fact that the absence of clear guidelines has resulted in uncertainty in the implementation of the provisions is a clear indication that the article requires further examination.

The Philippines also stressed concern regarding the recent decisions to withdraw from the Rome Statute. It furthermore stated that while well-intended, a recent statement by the ICC prosecutor on the situation in the country was premature given what it called ongoing investigations into alleged extra-judicial killings and systematic attacks against the population.

Notwithstanding many member states mentioning the challenges facing the court, they also acknowledged positive movements and achievements by the ICC. The majority of states reconfirmed its commitment to the ICC. Trinidad and Tobago said that ”we have much to celebrate”.

Lastly, several NGO’s delivered statements. They spoke about a range of issues, including the need for states to cooperate with the court and ensure access to justice for victims. They also expressed their concern about member state withdrawal.

Third Plenary Meeting of the ASP15

Overview by David Lando, Research Associate PILPG-NL

Highlights:

• General Debate in third Plenary Session. The debate included a discussion about the withdrawals of States from the Rome Statute, and was concluded in an important speech by the representative of Burundi.

• Burundi’s representative defended the withdrawal of the state from the Rome Statute: “it was a decision that expresses the will of the people of Burundi.”

• The UK representative noted that “we urge States Parties not to walk away, but instead resolve any issue they may have in the ICC.”

• Slovenia said that “The decision to withdraw from a treaty is a sovereign act. Yet we cannot disregard the message these actions send to the victims of atrocities.”

• Uganda: the “withdrawals are not mere masquerading” but reflect deep discontent among states, and that “the withdrawals may have been avoided”, yet “we regret to note that on many occasions Africa’s voice was left unheard.”

The States’ proclamations included a wide range of topics. States generally commended the workings of Court for its unprecedented workload in the time since the 14th session of the ASP. This appreciation was also extended personally to the Prosecutor by Iceland. Another topic that was granted specific commendation by a wide range of states was the recent ratification of the Rome Statute by El Salvador.

Andorra representative said: “The objective of universality of the Rome Statute should be sought. We therefore commend the ratification of the Statute by El Salvador. Moreover, many states, such as Spain, Slovenia, Czech Republic, and Latvia, among others, commended the ratification of the Kampala Amendments. The United Kingdom joined these commendations, yet urged “clarity on the jurisdiction of the Court on the Kampala Accords and the crime of aggression”, therefore expressing the view that the Kampala Amendments, and the definition of the crime of aggression, may collide with national sovereignty as the limits of jurisdiction it grants the Court are unclear. Other matter that was shared by many was the congratulations for the recent move to the Court’s new permanent premises.

The most notable statements concerned challenges to the ICC, most commonly the recent States’ notifications of withdrawal from the Rome Statute. The UK representative noted that “we urge States Parties not to walk away, but instead resolve any issue they may have in the ICC”. Similarly, Hungary’s representative voiced its State’s “regret that some States Parties announced their withdrawal”. And added that, “This ASP is an opportunity engage in a constructive dialogue, including those that dissatisfied with the work of the Court.” Slovenia said that “The decision to withdraw from a treaty is a sovereign act. Yet we cannot disregard the message these actions send to the victims of atrocities.”

Romania also declared that: “it is with deep regret that we received the decision of withdrawals. We encourage these States to reflect on the role of the Court that makes peace and security possible. The withdrawals send a message to the victims that accountability for crimes is impossible.”

The tone was strikingly different in the statements by Uganda, Nigeria, and most notably, Burundi. The representative of Uganda noted that complementarity should head the agenda of the Court, and that “Uganda leads the way in making complementarity a reality.” He then called on members to understand that the “withdrawals are not mere masquerading” but reflect deep discontent among States. He maintained that “the withdrawals may have been avoided”, yet “we regret to note that on many occasions Africa’s voice was left unheard.” And that the withdrawals demonstrate that “fostering good will between the Court and Africa is not a luxury but an absolute necessity.”

About the visit of Al-Bashir to Uganda he indicated that the “invitation of Al-Bashir to Uganda was no different from the invitation to other heads of State, or the invitation by the UN Secretary General to Al-Bashir.” And that “Al-Bashir remains an important figure in any attempt to conduct a dialogue with Sudan. . . These engagements are important to advance peace, security, and stability in the area.” The Nigerian representative called “on the ICC to ensure that the principle of complementarity is assured and applied, and that the sovereignty of States will be respected.” In regards to its domestic conflict with Boko Haram, he argued: “we do not only fight against insurgency, but in a war against terrorists. Terrorist that are wickedly brutal.” An interesting argument from International Humanitarian Law point of view and the implication it has in regards to the definition of the hostilities as armed conflict or not.

Finally, Burundi’s representative carried a statement where she defended the withdrawal of Burundi from the Rome Statute. Interestingly, the speech lasted for 18 minutes, while the allocated time for each statement is five minutes. The main argument was that the withdrawal “was a decision that expresses the will of the people of Burundi”, which was repeated several times. Moreover, she argued against the actions of the Office of the Prosecutor: “Burundi felt deep concern over [the] lack of cooperation by the Office of the Prosecutor, especially in regards to individuals that are prosecuted by the national authorities of Burundi. The Office of the Prosecutor still invited them to its investigations, despite the fact that they are under investigation by the national authorities.” In addition, ” There was constant partisan, biased, language by the Prosecutor about the situation in Burundi, about what she called—quote on quote—third term”. Here the representative referred to the third term of presidency by Pierre Nkurunziza, which sparked the opposition protests in Burundi. The representative argued that the violence that ensued following these protests were not the making of the Burundi authorities, and that the third term of Nkurunziza does not constitute an undemocratic act: “During the crisis in April, Pierre Nkurunziza was selected as the candidate to the presidency and he ended up winning. Others also participated but lost, and they sit in the Parliament these days. Part of the radical opposition rejected the path of legality- they preferred violence as a way to express their demands. Having peaceful protests against the election is a right that is protected by our constitution. However, violent attacks against civilian and military targets are crimes that are punishable by our country. These very individuals [from the violent opposition] were invited by the ICC so they can continue to make false accusations against Burundi, while the government was absent.” The investigation by the Office of the Prosecutor, moreover, manifest an unequal treatment by the Prosecutor, as “Burundi and the African people noticed that she did not send warning to France and Belgium about the way in which they counter terrorist attacks against their own people. We find this to be condescending and unacceptable.” Therefore, “The Office of the Prosecutor acted as if the ICC is some kind of an overarching police force. The people of Burundi said no to this- a thousand times no.”

First Plenary Meeting of the ASP15: Overview

By Jill Baehring and Kassahun Molla, Research Associates PILPG-NL

Highlights:

• Prince Zeid Ra’ad Al Hussein emphasized the importance of the African States for the ICC and called them “the backbone” of the Court.

• The Chief Prosecutor Fatou Bensouda announced preliminary investigations in Afghanistan, Iraq, Georgia and other situations.

• For the first time, the Board of Directors of The Trust Fund for Victims reported to the ASP. The statement mentioned the consideration of former child soldiers as victims in the Trust Fund. The Board of Directors also urged the States Parties to contribute to the Trust Fund in order to secure its funding.

The 1st Plenary Session was initiated by the President of the ASP, H.E. Mr. Sidiki Kaba with a statement which expressed the hope to increase peace and justice on a global level. After a minute of meditation, the Presidency continued to explain the agenda, which was subsequently adopted without amendments. The Presidency then announced the resignation of the Vice President of the ASP, Ambassador Álvaro Moerzinger (Uruguay). Ambassador Sergio Ugalde (Costa Rica) was elected as his successor.

The United Nations High Commissioner for Human Rights, Prince Zeid Ra’ad Al Hussein emphasized the importance of the African States for the ICC and called them “the backbone” of the Court. He nevertheless criticized the recent announcements of South Africa, Gambia and Burundi to withdraw from the Rome Statute. He assessed that to walk away from the court is a betrayal of the victims, and that states parties should defend the court, as universal accession is a necessity. The Commissioner also emphasized his office’s unconditional support to the Court and called for the states parties to do the same.

The Presidency of the ASP then welcomed the President of the ICC, Silvia Fernández de Gurmendi, and the Chief Prosecutor Fatou Bensouda. The Presidency also emphasized their full support for the work of the Court’s President and Prosecutor. In her speech, Silvia Fernández de Gurmendi reviewed the work of the Court for the year 2016 and provided an outlook to the near future, mentioning pending victim’s reparation, trials and investigations. She especially highlighted the Court’s efforts to cooperate with victims and to improve their legal representation as well as the consideration of victim’s claims before the Court. The Chief Prosecutor Fatou Bensouda, emphasized the commitment of the Court to end impunity, the importance of states’ participation, and disappointment concerning the recent states withdrawals. Bensouda also highlighted the major achievements of the court and announced decisions on the preliminary investigations in Afghanistan, Iraq, Georgia and other situations.

For the first time, the Board of Directors of The Trust Fund for Victims reported to the ASP. It highlighted the key activities accomplished in the reporting period and emphasized that the Board’s mandate got a volume and substance in this year. It was announced that the Trust Fund has been able to allocate 2 million Euro for victims in Uganda and 4 million Euro for victims in the Eastern Part of Kongo. The statement mentioned the consideration of former child soldiers as victims in the Trust Fund. The Board of Directors also urged the States Parties to contribute to the Trust Fund in order to secure its funding.

In the report on the activities of the Bureau, the establishment of the independent oversight mechanisms as requested during the 12th ASP was announced. Regarding South Africa’s request on establishment of a working group on the implementation of Art. 97, it was announced that the Bureau had decided to establish a working group, which is led by the Ambassador of Chile. The working group has made a recommendation which foresees a continuation of the discussion on the matter. While expressing disappointment regarding the decisions of South Africa, Kenya, and Burundi, the Bureau also emphasised the importance to strengthen national jurisdiction.

During the subsequent Agenda Item 13, the six members of the Committee on Budget and Finance have been selected.

Side Event: “JJR – Helping to fulfill the Promise of Ending Impunity and Justice Rapid Response’s Annual General Report”

Overview by Rosalie Dieleman, Research Associate PILPG-NL

Highlights:

• The JRR was established as an intergovernmental initiative to assist in fact-finding, inquiries and investigations into serious international crimes.

• It is currently deployed in fact-finding missions in Iraq and Afghanistan.

• Increasing trust in the rule of law can bring an effective end to violence and can provide deterrence to those that might want to retaliate with violence.

This event was organized by JRR and sponsored by Finland. Executive director of JRR, Mr. Andras Vamos-Goldman, presented the annual report of JRR of 2015. The JRR was established as an intergovernmental initiative to assist in fact-finding, inquiries and investigations into serious international crimes. JRR became operational in 2009 and has operated in over 100 nations around the world. It currently has over 600 international experts, and aims to be able to rapidly deploy experts to insure accountability of crimes. It aims to ensure that it can provide experts from the region that know the language and culture: getting the right people to the right place at the right time. It is currently deployed in fact-finding missions in Iraq and Afghanistan.

Vamos-Goldman stated that when investigations and fact-finding missions are executed with experts that know the cultural legal context in which the crimes took place, investigations can be more solid and credible. This is important as only when accountability is credible, international justice will work. This can turn around many recurrent cycles of violence around the world.

Summary of the JRR activities of 2016 
The JRR has built a very strong roster over these years, over the entire world, with a large network of professionals. Its professionals are rapidly deployable, with no more than a week as a standard. This is one of the reasons why request for JRR services have been growing over the years. JRR has also built special relations with the UN, amongst which the UN Women committee for which it has been deployed on various missions. Most deployments of the JRR have been on behalf of UN bodies and states. Other than that, it has also done work for tribunals, regional and other international organizations.

Plan for 2017 
More focus on outreach to states and international institutions, as well as continuing to recruit new professionals. JRR will also focus on increasing partnerships which allow the conditions for the deployment of JRR be made as easy as possible. This strategy has made the cooperation with UN women such a success.

Questions
Representative of the International Fact-finding Commission (IFC) asked: How does the JRR make their professionals available to be rapidly deployed? Vamos Goldman answers that it is because of the way in which the experts are recruited. JRR recruits them by making contact with their employers (states, private sector, international organizations). They invite these employers to nominate experts, who can then receive free training from JRR, in exchange they have to be available for deployment for the JRR. The expertise gained by the professional is in this way mutually beneficial for the JRR and the employer. This system has led to an over 80 percent first choice rate with regards to deployment of its professionals.

Representative of UN women asks how to use the available evidence from earlier investigations to prevent crimes against women and sexual and gender-based violence? Vamos-Goldman answers that an important way to prevent, is to make sure that investigation of the crimes is as good as possible so that accountability is credible. This ensures trust in the rule of law, which can bring an effective end to violence and can provide deterrence to people that might want to retaliate with violence. This way the rule of law can cut the end of the continuous cycle of violence.

Points of action for the next session/meeting 
For the work that is being done on the ground by Justice Rapid Response – namely investigating, inquiries and fact-finding missions – the Human Rights Documentation Handbook as well as the Toolkit may be relevant.

Second Plenary Meeting of the ASP15: Overview

By Rosalie Dieleman, Research Associate PILPG-NL

Highlights:

• The withdrawal of the three African states Gambia, South Africa and Burundi prompted a majority of states‘ representatives to express regret at the decision of these states to withdraw from the ICC. They invited them to reconsider their decision and engage in a constructive dialogue during the ASP.

• South Africa: “credibility and acceptability of the ICC to become the universally accepted institution of justice will be questioned for as long as the concerns of Africa specifically and member states more generally are not addressed.”

• Several states added that the dialogue should be open to the critique of these states, and that this should discussing possible amendments to the Rome Statute.

• The possibility of the activation of the crime of aggression at the Assembly of State parties in the upcoming year, was also discussed by various states.

• Several states called upon the Security Council to take action with respect to the situation in Syria.

During the second plenary meeting of the 15th Assembly of State’s parties on 16 November 2016, 25 state parties to the Rome Statute have issued statements. A topic that was addressed by each of these states was the withdrawal of the three African states Gambia, South Africa and Burundi. Many of these 25 states expressed that they regretted the decision of these countries to withdraw from the ICC, and have invited them to reconsider their decision and engage in a constructive dialogue during the ASP.

South Africa, as one of the states that is withdrawing from the ICC, expressed that “there are perceptions of inequality and unfairness in the practice of the ICC that do not only emanate from the Court’s relationship with the Security Council, but also by the perceived focus of the ICC on African states, notwithstanding clear evidence of violations by others”. And that the “credibility and acceptability of the ICC to become the universally accepted institution of justice will be questioned for as long as the concerns of Africa specifically and member states more generally are not addressed”. In the statement, South Africa stressed that the Rome Statute cannot be regarded as a static instrument and that it must be amended to address its weaknesses. On the other hand, the Democratic Republic of the Congo declared that, despite the difficult context and the growing temptation, it will not be withdrawing from the ICC. The DRC expressed that the trust in the ICC is being undermined as serious crimes are being committed on a daily basis and on a broad scale, while the perpetrators are being protected. Consequently, the DRC believes that now is the time for the Assembly to take a serious look at the concerns expressed by the African nations.

Several states added that the dialogue should be open to the critique of these states, and that this should discussing possible amendments to the Rome Statute. Austria expressed that it very much regretted the withdrawal of three states, however that it is still important to stress the important role of African States, leaders and civil society in the establishment of the Court. Austria added that the ICC has a unique role in delivering justice to victims, and that it hopes Burundi, South Africa and Gambia will reconsider their withdrawal. Costa Rica expressed that it is especially sad that one of the standard-bearers of the Rome Statute has withdrawn. Costa Rica added that the Court should undergo improvements if this is necessary, and that this may very well include revision of the Rome Statute. Colombia expressed its concern about these recent developments and the fact that they stand in the way of universality of the ICC. Colombia expressed the importance of getting to the bottom of this issue, cutting through the false reasons and getting to the genuine problems underlying these decisions. In addition, it declared that the diversity of the parties to the Rome Statute is something that should be celebrated. The ambassador of Slovakia, also representing the European Union in this statement, expressed its concerns about the relationship between the ICC and some governments, and stressed the importance of dialogue and constructive communication between states. The Netherlands statement stressed that walking away is not the solution, and that the only solution is improving the Rome Statue system.

On the other hand, there were several states that emphasized the need to reaffirm the fundamental principles of the Court as a response to these challenges. Australia engaged in a passionate statement in which it stressed that it should be important to reaffirm, and not to undermine the fundamental principles of the Rome Statute. It added to the discussion that when states leave the ICC, they also take with them their history, their voices and their diverse perspectives. Norway engaged both lines of argument by stating that it believes that it is possible to address the critique of the African states whilst adhering to the fundamental principles of the Rome Statute.

The possibility of the activation of the crime of aggression at the Assembly of State parties in the upcoming year, was also discussed by various states. Germany expressed in this regard that it considers the jurisdiction of the Court incomplete without jurisdiction over the crime of aggression, and that reaching the threshold of 30 ratifications has been very encouraging. Finland expressed that the Kampala amendments will enter into force in Finland at the end of the year, and that it is looking forward to the activation of the crime of aggression at the next ASP. In addition, Italy announced that it expects to ratify the Kampala amendments soon.

Another issue that was addressed in various statements is the referral power by the United Nations Security Council. The Slovakian ambassador, representing Slovakia as well as the European Union, called upon the Security Council to take action with respect to the situation in Syria. The Republic of Korea also addressed the necessity of the Security Council to direct its attention to alleged ongoing human rights abuses. In addition, Palestine requested prompt investigation into alleged crimes of which the Palestinian people have been victim.